"The test for admissibility of the evidence under these circumstances is two-fold: not only must the consent be voluntary, but it must also be ‘sufficiently an act of free will to purge the primary taint’ " of the initial constitutional violation. Id. at 774 (quoting Wong Sun , 371 U.S. at 486, 83 S.Ct. 407 ); United States v. Bocharnikov , 966 F.3d 1000, 1004 (9th Cir. 2020) ("[W]hen a confession results from certain types of Fourth Amendment violations ..., the government must go beyond showing that the confession was voluntary—it must also ‘show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.’ " (quoting Oregon v. Elstad , 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) )).

That is not enough to avoid suppression. Cf. United States v. Bocharnikov , 966 F.3d 1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) ("To rule in the government's favor on this appeal would have required us to bend over backwards, doing the government's work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.").

"The relevant question for attenuation purposes is whether th[e] passage of time would have in any way dissipated [defendant's] perception that the searches had produced evidence such that his remaining silent would be useless, or decreased the extent to which the government's confronting [defendant] with the illegally seized evidence induced his statements." Shetler, 665 F.3d at 1159; see also United States v. Bocharnikov, 966 F.3d 1000, 1004 (9th Cir. 2020) (observing that "one of the first things that [the agent] said to [the defendant] was that he was there to 'ask some follow-up questions' " and "referring back to the initial illegality by using the 'follow-up' phrasing made the second encounter a de facto extension of the first incident, the passage of time not-withstanding."). "To draw any conclusions from the timing of the defendant's confessions, we must consider the temporal proximity factor in conjunction with the presence of intervening circumstances."

But see United States v. Marasco, 487 F.3d 543, 547-48 (8th Cir. 2007) (no but-for causality where record did not show defendant was confronted with illegally seized evidence). See and compare Yorgensen, 845 F.3d at 914 (more than two days between defendant's arrest and interview weighed in favor of attenuation) with United States v. Bocharnikov, 966 F.3d 1000, 1004-05 (9th Cir. 2020) (defendant's statements not sufficiently attenuated from illegal detention and seizure eight months before where agent referred to initial illegality); see also Shetler, 665 F.3d at 1159 (“The relevant question for attenuation purposes is whether th[e] passage of time would have in any way dissipated [defendant's] perception that the searches had produced evidence such that his remaining silent would be useless, or decreased the extent to which the government's confronting [him] with the illegally seized evidence induced his statements.”); United States v. Shaw, 464 F.3d 615, 627-28 (6th Cir. 2006) (“temporal proximity” is an “ambiguous” factor; it “must be considered in light of the conditions and circumstances that occurred during the time frame in question”); Reed, 349 F.3d at 464 (“there is no ‘bright-line' test for temporal proximity”); see generally 6 Search and Seizure, § 11.4(b) (mere passage of time ignores possibilities inherent in time lapse and that illegal custody becomes

The second is whether the answers the suspect gave to officers were influenced by his knowledge that officers had already seized certain evidence.United States v. Bocharnikov, 966 F.3d 1000, 1003-04 (9th Cir. 2020) (quoting Oregon v. Elstad, 470 U.S. 298, 306 (1985) (emphasis added)); see also Dickerson v. United States, 530 U.S. 428, 441 (2000) (“[Elstad] recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment”); United States v. Shetler, 665 F.3d 1150, 1159-60 & n.4 (9th Cir. 2011) (explaining difference between confessions resulting from Fourth Amendment violations and Fifth Amendment violations)

However, statements made following an illegal seizure are governed by the Fourth Amendment. See Ramirez, 976 F.3d at 959-60; United States v. Bocharnikov, 966 F.3d 1000, 1003-04 (9th Cir. 2020) (“[W]hen a confession results from certain types of Fourth Amendment violations (rather than a Fifth Amendment violation), the government must go beyond proving that the confession was voluntary-it must also ‘show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.'” (quoting Oregon v. Elstad, 470 U.S. 298, 306 (1985))). The decision in Edwards, on the other hand, concerns violations of the Fifth Amendment during custodial interrogations and does not apply under the circumstances of this case.

If a police officer has probable cause to believe that a person has committed a felony, the officer does not need a warrant to arrest the person in public. United States v. Watson , 423 U.S. 411, 423, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (" ‘The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony ....’ ") (quoting Carroll v. United States , 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ); see alsoUnited States v. Bocharnikov , , 966 F.3d 1000, 1005-06 (9th Cir. 2020) (Chabbria, J., concurring) (noting that no Fourth Amendment violation occurs if an arrest is made with probable cause). Assessing whether there is probable cause to arrest "depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest."

Where neither of the first two Brown factors establishes sufficient attenuation, courts have held that evidence may be subject to suppression even absent flagrant or purposeful conduct. (See U.S. v. Garcia (9th Cir. 2020) 974 F.3d 1071, 1082 ["[E]ven accepting the district court's finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence."]; U.S. v. Bocharnikov (9th Cir. 2020) 966 F.3d 1000, 1005 [same]; U.S. v. Perez-Esparza (9th Cir. 1979) 609 F.2d 1284, 1291 ["[T]he last factor is insufficient to overcome the lack of attenuation dictated by the first two factors."].) Here, however, we find purposeful conduct and so have no occasion to consider how to weigh the third Brown factor under different circumstances.